Singer Sewing Mach. Co. v. Teasley

• Decision Date: 08 June 1916
• Docket Number: 3 Div. 221
• Parties: SINGER SEWING MACH. CO. v. TEASLEY, Judge of Probate.
• Court: Alabama Supreme Court

73 So. 969

198 Ala. 673

SINGER SEWING MACH. CO. v. TEASLEY, Judge of Probate.

3 Div. 221

Supreme Court of Alabama

June 8, 1916

Rehearing Denied Jan. 20, 1917

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Action by the Singer Sewing Machine Company against Charles B Teasley, Judge of Probate. Judgment for defendant, and plaintiff appeals. Affirmed.

Tyson &amp Arrington, of Montgomery, for appellant.

W.L Martin, Atty. Gen., and Laurence E. Brown, Asst. Atty. Gen., for appellee.

SAYRE J.

In the trial court demurrers were sustained to the first, third, fifth, and sixth counts of the complaint. These rulings as to the first and third counts are assigned for error. As affording most ready access to the questions involved, we quote the third count, as follows:

"Plaintiff claims of defendant the further sum of $1,265.55, being the sum of money paid by plaintiff to defendant under protest on July 6, 1914, for state and county licenses for the years 1911, 1912, 1913, and 1914, for engaging in the business of selling sewing machines as a merchant at its regularly established places of business, and for delivering by wagons machines so sold by plaintiff, together with tax commissioner's fees of 10 per cent. and the defendant's fees for issuing said licenses, which sum of money was illegally exacted of plaintiff by defendant, and which plaintiff was compelled to pay, with interest thereon from July 6, 1914."

Such grounds of demurrer assigned as were not merely general, we think, may be fairly formulated as follows: (1) the illegal exaction complained of is alleged as a mere conclusion of the pleader; and (2) for aught appearing plaintiff's payment was voluntary, and not under legal compulsion.

As covering both objections thus taken to the complaint, we quote the text of 37 Cyc. at page 1188:

"The petition or complaint in an action to recover back money paid as taxes must allege distinctly the facts relied on as rendering the tax illegal or its exaction unlawful, and this not in general terms, but with such particularity that the court may judge of their sufficiency. It must also allege the payment of the tax, and that such payment was involuntary, when this is necessary to entitle him to recover, with facts showing duress or compulsion or some compelling necessity of making the payment."

This is nothing more than a statement, with adaptation to this particular class of cases, of the general rule of pleading which requires that the complaint shall state the material issuable facts indicating plaintiff's right to recover. The point raised by the first ground of demurrer, as we have stated it above, is not argued in Francis v. Southern Railway, 124 Ala. 544, 27 So. 22, but the application of the principle is implied in the ruling in that case. So in Commissioners' Court v. Southern Railway, 146 Ala. 439, 41 So. 463, reference to the cases cited in the note to the text of Cyc. supra will disclose the general understanding that in cases of this character the complaint must allege specific facts sufficient to show how and in what particular the tax money sought to be recovered has been illegally exacted. In Pelton v. Bemis, 44 Ohio St. 51, 4 N.E. 714, in which the point was taken by demurrer, after noting that the facts alleged in the common counts import an indebtedness, the court said:

"But we know of no case, and certainly none has been cited, that has gone to the length of holding that an averment that the defendant is indebted to the plaintiff would support a recovery in any instance; and yet such an averment is no more purely a question of law, than an averment that an assessment is illegal and void."

And in M. & W.P.R.R. Co. v. Duer, 46 Ga. 272, where the question was raised in the same way, the court held that the facts going to show that the taxes had been illegally collected and received by the defendant should have been alleged so that the court might judge whether under the law applicable thereto the taxes had been illegally collected and received; that it was not enough for the plaintiff to allege that the collection of taxes was illegal, without alleging the facts which made it illegal.

In respect of the second ground of demurrer as we have stated it: The principle of pleading involved is precisely that already considered. It was proper, of course, that the pleader should state his conclusion, but facts to justify it should have been stated also. The allegation that "plaintiff was compelled to pay" is employed to exclude the conclusion that the payment was voluntarily made, and a proper exclusive averment was necessary; for payments of money for taxes are presumed to be voluntary within the meaning of the law until the contrary is made to appear. 2 Cooley, Tax. (3d Ed.) 1499. But, "when a voluntary payment is spoken of, the qualifying word is not used in its ordinary sense, and many payments are held voluntary which are made unwillingly and only as a choice of evils or of risks." Id. 1501. We do not consider that the word "compelled" necessarily imports that those elements which enter into duress or compulsion as defined by this court for the purposes of cases of this general character, viz.: This, in substance, that payment is not to be regarded as compulsory unless made to relieve the person or property from an actual and existing duress imposed upon the payor by the officer to whom the payment is made. Winter v. Montgomery, 65 Ala. 411; Raisler v. Athens, 66 Ala. 194; Southern Ry. v. Florence, 141 Ala. 493, 37 So. 844, 3 Ann.Cas. 106. Hence we hold that, in the respect just here in question, the count was demurrable on the ground taken against it, for that the allegation that plaintiff was compelled to pay was the statement of a mere conclusion of law unsupported by facts.

It may be inferred that this count of the complaint was framed with reference to section 32 of the revenue act of March 31, 1911 (Acts 1911, p. 159 et seq.), which reads:

"Each person, firm or corporation selling or delivering sewing machines either in person or through agents, shall pay fifty dollars annually, for each county in which they may sell or deliver said articles. And for each wagon and team used in delivering or displaying the same an additional sum in each county of twenty-five dollars annually; but this section shall not apply to merchants selling the above enumerated articles at their regularly established places of business."

It appears from this section that the business of selling sewing machines by traveling salesmen is intended to be taxed, and the business of selling them at established places of business is intended to be left untaxed, so far as this section is concerned, although the machines sold at these places be delivered by wagons, and upon this construction of the act it is contended that the language of the count shows that plaintiff (appellant) was a merchant selling sewing machines at its established place of business, and therefore within the proviso excepting it from the tax imposed. So then, the argument proceeds, the facts alleged show an illegal exaction under compulsion. This argument, so far as the necessary element of legal compulsion is concerned, rests entirely upon the use of the word "compelled." We believe we have sufficiently refuted the sufficiency of the count in that respect. As for the further proposition that the count shows that the money paid by plaintiff was illegally exacted, meaning only, we take it, that defendant received the amount claimed in excess of the amount fixed by law as the license tax for the business in which plaintiff was engaged, we think this conclusion also can only be reached by a process of inference, and that a process so inconclusive as to amount to hardly more than a speculation. At least it is safe to say that the count does not show how plaintiff was selling machines in Montgomery county, whether from one or more established places of business or by traveling salesmen only, and if by the latter method only, then it does not appear how many wagons and teams were so employed. Matters essential to be pleaded cannot be left to vague inference as against a demurrer taking apt objection.

We have considered the count thus far with reference only to general principles of pleading, and as if plaintiff's substantive right depended upon defendant's unlawful exaction of the money by compulsion or legal duress as that has been defined by this court. But plaintiff refers to the act approved August 25, 1909 (Acts Sp.Sess.1909, pp. 165, 166), amending section 2411 of the Code so as (in pertinent part) to read as follows:

"And any person who, through a mistake or error of the probate judge, has paid to the probate judge money that was not due from him for such license, or by *** mistake has paid to the probate judge for such license an amount in excess of that required by law for the business to be carried on by such person under the license, such person shall be entitled to have refunded to him the amount *** so erroneously collected by the probate judge, and the provisions of this section shall apply in cases where money has heretofore been so erroneously paid within two years

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